The Defence Toolkit – May 14, 2022

This week’s top three summaries: R v Barrett, 2022 ONCA 355: #provocation, R v Brown, 2022 SCC 18: #automatism, and R v Grant, 2022 ONCA 337: #exculpatory ID evidence.

This week's top case deals with provocation and issue that is a partial defence to murder, but more often a sentencing issue. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase to our readership with a 10% discount code provided below. To purchase, simply click on image below.

R v Barrett, 2022 ONCA 355

[May 5, 2022] Air of Reality: Provocation in a Murder Defence [Reasons by J.A. Thorburn, with G.R. Strathy C.J.O. and I.V.B. Nordheimer J.A. concurring]

AUTHOR’S NOTE: The partial defence of provocation to murder, as with any defence has a requirement that the defence show an air of reality. This is the mechanism by which judges sometimes prevent the defence from advancing an argument before a jury. The co-existence of alternative defences in murder involving self-defence and provocation has often been a thorny issue as the two positions are in some ways incompatible alternatives: the accused either did the act intentionally to defend themselves or their passions were so elevated that that acted without considering the consequences lashing out in anger. For this reason Crown counsel and sometimes judges err in excluding one of these possibilities from the jury on that basis. However, courts have repeatedly corrected this. The air of reality test is low AND it allows for the fact that the jury may accept some, none, or all the evidence of any witness, including the accused. Thus, they can reject a self-defence claim by an accused and instead, based on all the surrounding circumstances, find that they acted due to provocation. Rejecting the self-defence claim does not mean the person is guilty (without provocation) in such circumstances. This exact factual scenario was available in this matter and a new trial was ordered to correct the error below of failing to charge the jury on provocation. 

The Issues

[1] In the early morning hours of February 15, 2015, the appellant, Terrence Barrett, and Milan (“Mike”) Segota got into a fight. The appellant stabbed Mr. Segota 22 times, after which Mr. Segota died.

[2] At trial, the appellant faced a charge of second-degree murder. There was no dispute that Mr. Segota died as a result of stab wounds inflicted by the appellant.

[3] The appellant claimed he acted in self-defence and should therefore be found not guilty. At the pre-charge conference, his counsel also asked the trial judge to provide the jury with an instruction on the partial defence of provocation as provocation was an alternative defence theory.

[4] The trial judge declined to do so, as she found that there was no air of reality to provocation. She did, however, provide the jury with a legal instruction on self-defence, and gave a rolled-up charge to alert the jury to the need to consider all evidence relevant to the appellant’s state of mind, including alcohol consumption, mental disorder, rage, fear, and Mr. Segota’s “provoking or threatening words or conduct.”

[6]  The appellant appeals his second-degree murder conviction on three grounds: ...

iii. The trial judge’s refusal to leave the defence of provocation with the jury (which if accepted, would have resulted in a conviction for manslaughter not second-degree murder).

Background Facts

[8] The appellant and his romantic partner, Ms. Novak lived together in a rooming house in Barrie. The deceased, Mr. Segota, lived next door.

[9]  The appellant and the deceased had a history of physical fights.

[10]  On January 20, 2015, the appellant called the Barrie Police to report an incident that had occurred with Mr. Segota. According to the appellant, he and Ms. Novak were arguing. Mr. Segota came into his unit and punched the appellant several times in the face. The appellant did not wish to lay charges. On a second occasion, another occupant of the rooming house saw the appellant and Mr. Segota in a physical confrontation. Mr. Segota appeared to have the upper hand.

[11] The appellant also had a history of physical fights with his partner, Ms. Novak. Theirs was a volatile relationship that involved drinking and drugs.

[12] Other tenants in the building testified about the volatility of their relationship. In 2014, the appellant pled guilty to assaulting Ms. Novak. According to Ms. Novak, Mr. Segota was aware of the abuse and had stood up for her in the past.

The incident in question

[13] On February 15, 2015, the night in question, the appellant and Ms. Novak were drinking in their room. Mr. Barrett testified that he drank eight beers and Ms. Novak drank nine. Ms. Novak agreed that she was “pounding them back”.

[14] The appellant testified that, at some point, Ms. Novak had to go to the washroom. The washroom was located outside the unit and was shared by other residents of the rooming house. Ms. Novak wanted the appellant to go with her as the rooming house was not safe. The appellant said he told her to “leave [him] the fuck alone” and Ms. Novak left the room to go down the hall to the washroom.

[15] The appellant said that after a couple of minutes, he heard Ms. Novak and Mr. Segota arguing in the hall. Mr. Segota complained about the noise. There was name calling. Ms. Novak returned to their unit, slammed the door, and muttered something under her breath. Then there was a knock on the door. The appellant said that Mr. Segota said, “Come out here, bitch” whereupon Ms. Novak exited. The arguing escalated.

[16] The appellant said he ran down the hallway for a better view and “I saw them fighting over knives ... fighting with each other.... It looked like he was hitting her.”

[17] Several neighbours heard the appellant and Mr. Segota yelling. One thought he heard the appellant say to Mr. Segota, “don’t hit on my wife” or “don’t hit my wife”. Another testified that he heard the appellant say, “you want to attack my wife?” and yet another heard the appellant say, “you hit my girlfriend”.

[18] The appellant said he entered the fray because Ms. Novak had been struck or threatened by Mr. Segota with a knife. Mr. Segota had a brown-handled steak knife with a six-inch blade in his hand as well as the knife he took from Ms. Novak. “I grabbed his arms and it was, we were fighting around, and I was able to take the [one] knife with my right hand, and he told me he was going to fucking kill me, so,and he was trying to stab me. So, I, it’s, I stabbed him.”

[19] He said that as he held Mr. Segota’s hands, Mr. Segota kept trying to stab him, so he stabbed Mr. Segota 22 times in rapid succession. Eventually, the appellant said he hit Mr. Segota in the back and then it just stopped. He took a step back, Mr. Segota dropped the knife and fell to the floor.

[21] The appellant had no stab wounds or cuts to his body from the physical confrontation – only a few “little nicks” to the hand.

[22] After Mr. Segota fell, the appellant said Ms. Novak grabbed the other knife and took off down the hallway. She then came out of her room yelling: “I’ve been stabbed. Call 911.”

[24] During her examination-in-chief, Ms. Novak testified that she went to the washroom with the appellant, because he did not let her go by herself. She said that she and the appellant were yelling at each other in the hallway. Mr. Segota came out, yelling about the noise and telling the appellant not to talk to Ms. Novak “like that.” Ms. Novak said she went back into the room but came back out to “break up the fight.” She also claimed that the appellant stabbed her while she was trying to break up the fight. Photos taken of Ms. Novak at the hospital following the killing depict two stab wounds.

[25] ... On cross-examination, Ms. Novak said she lied to all of the police officers about what happened.

[26] The trial judge strongly advised the jury to approach Ms. Novak’s evidence with caution as she had lied to the police and lied under oath at the preliminary inquiry, she abused drugs and alcohol, suffered from personality disorders, psychiatric issues, and tactile and auditory hallucinations. She was on a variety of medications and claimed she did not recall much of her prior evidence because she sustained a head injury after the preliminary inquiry. She claimed she would answer “I don’t remember” to every question, attempted to walk out of the trial, and refused to answer some questions.

The injuries sustained

[27] According to Dr. Jayantha Herath, Mr. Segota died of 22 stab wounds to the torso. ...

[28] ... It would not have surprised Dr. Herath if Mr. Segota continued fighting for a minute or two, despite his injuries.

The appellant’s movements after the stabbings

[30] The appellant testified that he was in shock and scared about everything. Ms. Novak told him not to worry about it and to get out of there, so he ran. The appellant fled but was found and arrested the next morning.

Analysis of the Issues

3. Should Provocation have been left with the Jury?

[54] The third issue raised by the appellant is that the trial judge should have put the defence of provocation before the jury.

[55] A trial judge must instruct the jury on all defences which arise on the evidence, even if they are not raised by the defence. A failure to object to a jury charge is not fatal to an appeal: R. v. L.K., 2020 ONCA 262, at para. 15.

[56] As noted earlier, defence counsel requested that the trial judge instruct the jury on provocation, but the judge ruled that there was no air of reality to provocation.

The Law of Provocation

[57] There are four prerequisites to provocation: (i) a wrongful act or insult; (ii) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (iii) the accused must have acted in response to the wrongful act or insult that was sufficient to deprive an ordinary person of self-control; and (iv) the accused must have acted “on the sudden”, before there was time for the accused’s passion to cool. The first two elements are objective and the latter two are subjective: s. 232 of the Criminal Code, R.S.C. 1985, C-46 and R. v. Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, at paras. 25 and 36.

[58] Since July 17, 2015, when the provision was amended, the “wrongful act or insult” must constitute an indictable offence punishable by at least five years of imprisonment: s. 232(2). However, that requirement does not apply in this case because the charged conduct occurred before July 17, 2015: R. v. McRae, 2021 ONCA 525, at para. 19.

[60] The requirement of suddenness “before there was time for his passion to cool” distinguishes a response taken in vengeance from one that was provoked: Tran, at para. 38.

[61] The “air of reality” test is not intended to assess whether the defence is likely or unlikely to succeed. Nor is it an onerous test to be met. The question is whether a properly instructed jury acting reasonably could be left with a reasonable doubt as to whether there was (i) a wrongful act or insult (ii) that would deprive an ordinary person of the power of self-control, (iii) which wrongful act or insult deprived the accused of self-control, and (iv) to which the accused reacted “on the sudden” before there was time for his passion to cool: R. v. Pappas, 2013 SCC 56, [2013] 3 S.C.R. 452, at paras. 21, 27-28, 34. The trial judge must find that there is an air of reality on each element: Pappas, at para. 21.

[62] Where there is an air of reality to the defence of provocation, the instruction must be given to the jury. It is an error of law not to do so: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 55.

[63] In deciding whether there is an air of reality, the trial judge must consider both direct and circumstantial evidence capable of supporting an inference that there was provocation. If the evidence of provocation is direct, provocation should go to the jury. If the evidence is circumstantial (as in this case), an inference must be drawn and, “the trial judge may engage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence”: Pappas, at para. 25. But in this limited weighing exercise, the judge must not make findings of credibility or reliability, or findings of fact: Cinous, at paras. 53-54, 87-91; Pappas, at paras. 22-25.

[64] The past history of the relationship between the accused and the victim is a relevant consideration: R. v. Thibert, 1996 CanLII 249 (SCC), [1996] 1 S.C.R. 37, 45 C.R. (4th) 1, at paras. 24-25; R. v. Boukhalfa, 2017 ONCA 660, 350 C.C.C. (3d) 29, at para. 93.

[65] The emotions experienced by the accused, including anger, worry, and fear for his own safety during the altercation, are also a relevant consideration, although the presence of strong emotions must be assessed in the context of the surrounding facts, and do not necessarily suggest provocation: R. v. Buzizi, 2013 SCC 27, [2013] 2 S.C.R. 248, at paras. 59-61.

[67] If there is doubt about whether the test is made out, the trial judge should err on the side of caution and leave the defence with the jury: Pappas, at paras. 26, 33; R. v. Cairney, 2013 SCC 55, [2013] 3 S.C.R. 420, at para. 22; R v. Suarez-Noa, 2017 ONCA 627, 350 C.C.C. (3d) 267, at para. 49; and R. v. Hill, 2015 ONCA 616, 330 C.C.C. (3d) 1, at paras. 67-71.

[68] Incompatibility of the proposed defence with the primary defence does not, without more, mean that the proposed defence lacks an air of reality: R. v. Gauthier, 2013 SCC 32, [2013] 2 S.C.R. 403, at paras. 32, 34.

[69] There may be an evidentiary basis upon which to leave a defence with the jury even where an accused’s own testimony disavows that defence, although an accused’s testimony is an important consideration in the inquiry: R. v. Pilon, 2009 ONCA 248, 64 C.R. (6th) 356, at para. 82; R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, at paras. 18-21. For example, in R. v. Angelis, 2013 ONCA 70, 99 C.R. (6th) 315, an accused testified that he was not angry at the victim after he was attacked. However, there was other evidence that he lost control and the jury were therefore free to disregard the accused’s evidence and accept other evidence on the point: Angelis, at para. 33.

The Trial Judge’s Ruling

[70]      The trial judge held that,

I find that there is no air of reality to the subjective component. ...

I agree with the Crown’s submission that there is no hint of loss of control in the evidence. Rather, the evidence is that Mr. Barrett responded in a measured way to what he encountered. [Emphasis added.]

Whether Provocation Should have been put to the Jury for their Consideration

[76] Mr. Segota’s evidence that the incident began with the attack on the appellant’s romantic partner with knives, coupled with his threat to kill the appellant while armed with a knife, is a wrongful act. It was open for the jury to infer that it would cause an ordinary person to lose self-control.

[77] Moreover, there was direct evidence from the appellant and circumstantial evidence to support the subjective elements of provocation, that the appellant acted in response to the wrongful act and did so before there was time for his passion to cool. That evidence consists of the following:

1. The appellant and Ms. Novak had been drinking heavily;
2. The appellant had been attacked by Mr. Segota before and had been harmed;
3. The appellant walked out to the hallway because he heard his romantic partner fighting with Mr. Segota. ...
4. Three neighbours heard him say words to the effect of “you want to attack my wife” as he went into the hallway;
5. The appellant took one of Mr. Segota’s knives from him while holding him, and, as soon as he did so, the appellant was threatened with death by Mr. Segota who still held another knife and was trying to stab him;
6. The appellant and Mr. Segota fought with the knives and as they fought, the appellant stabbed Mr. Segota 22 times, in the appellant’s words, “extremely quickly” and as part of one transaction;
7. Ms. Novak testified that Mr. Barrett was in a “rage”; and
8. The appellant testified that he experienced “shock” and was “terrified”.

[78] This evidence, taken together, does not support the trial judge’s conclusion that the appellant’s response was “measured” and that his actions betray “no hint of loss of control”.

[79] The appellant was subject to threats, as was his romantic partner, he was accosted by a man with several knives while he was unarmed, there was one quick fight during which the appellant wrestled one knife from Mr. Segota but Mr. Segota still had another in his hand, and they continued to fight, while the appellant was shocked and terrified. If believed, this evidence could lead a properly instructed jury acting reasonably to be left with a reasonable doubt as to whether the stabbings took place before the appellant’s passions had time to cool. Moreover, although the appellant did say that he overpowered Mr. Segota at some point during the struggle, the appellant also said that he was “terrified” that Mr. Segota“was trying to stab me with that knife” and “shocked” when he realized he had stabbed Mr. Segota.

[107] It was open to the jury to infer that Grant's conduct -- putting the shooter in a headlock, immobilizing his hands and arms with a baton and taking him forcefully to the ground -- was a wrongful act. There was no evidence the shooter contacted Grant. Nor does the mere fact that the shooter approached Grant from the rear necessarily undermine the inference that Grant's response was sudden and wrongful. In addition, it was open to the jury to infer that Grant's conduct could cause an ordinary person to lose the power of self-control. The jury was not required to accept Grant's testimony that the shooter calmed down before Grant released him and the shots were fired.

[108] Turning to the subjective element of provocation: that the accused acted on the provocation on the sudden before there was time for his passion to cool. It was open to the jury to infer that the shooter's response to Grant's wrongful act was sudden, thus before the passion aroused by that wrongful act had time to cool.

[109] … It is not for me, as it was not for the trial judge, to say whether the defence was likely, somewhat likely, very likely or not at all likely to succeed as a matter of fact. [Emphasis added.]

[83] On the other hand, this case is distinguishable on its facts from the recent decision in R. v. Alas, 2022 SCC 14, where the Supreme Court held there was no air of reality to the defence of provocation. Unlike this case, as noted by MacPherson J.A. of this court in his dissenting reasons (which were upheld on appeal):

1.   “There was a clear and fairly lengthy period between the deceased's [first] interaction … and the subsequent interaction outside [where the stabbing took place]”;
2. After the first interaction “the appellant appeared to calm down”;
3. The deceased “did not verbally threaten” or “have physical contact with” the appellant or the women with him
4. As the verbal confrontation continued, the appellant “said nothing, transferred a knife from his pants pocket to his jacket pocket … even though the confrontation between the deceased and the women was verbal and the deceased was not displaying a weapon (he did not have one)”; an
5. The appellant continued to stab the deceased who was unarmed: Alas, at paras. 74-79.

[84] The interaction between the appellant and Mr. Segota was, on the evidence of the appellant, one quick and unbroken transaction. It began when the appellant arrived to find his romantic partner being attacked by a man wielding knives whom the appellant had fought in the past. It continued when the appellant wrested one of Mr. Segota’s knives away. While they were fighting, Mr. Segota, who remained armed, verbally threatened to kill the appellant. The appellant stabbed Mr. Segota. Ms. Novak testified that the appellant was “enraged” during the altercation, and the appellant described feeling terror at the prospect of being stabbed.

CONCLUSION

[85] In sum, there was enough evidence that a properly instructed jury, acting reasonably, could be left with a reasonable doubt as to whether there was a wrongful attack that would cause an ordinary person to lose self-control, the wrongful act deprived the appellant of self-control, and the appellant’s reaction was sudden, continuous, and committed before the appellant had time for his passion to cool.

[86] Moreover, I find the failure to provide a provocation instruction is not cured by the provision of a rolled-up instruction (in which a number of factors such as alcohol consumption, failure to take medication, and provocation outside the statutory meaning of provocation in s. 232 of the Code, were articulated that, if accepted, could result in a diminished mental state) as, unlike the rolled-up instruction, provocation may apply even if the appellant intended to kill Mr. Segota.

[87] For these reasons, I would allow the appeal, set aside the conviction of second-degree murder and order a new trial on the ground of failure to instruct the jury on provocation.

R v Brown, 2022 SCC 18

[May 13, 2022] Automatism - s.33.1 Struck Down [Reasons by Kasirer J. with Wagner C.J. and Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Jamal JJ. Concurring]

AUTHOR’S NOTE: This decision is useful for a very small minority of cases of self-induced intoxication. Significant commentary about doubtful application to intoxication by alcohol will limit the application of this defence as will the natural requirement for expert evidence about intoxication to the degree required for automatism. Simply put, it will be very hard factually to thread this needle for defence counsel. Moreover, there are some very open invitations to parliament to criminalize even this degree of intoxication by virtue of a completely different offence or by amending the formula. This may not be the last word on the availability of this defence. However, for now, this case provides a rubric for defending the involuntary acts of people who are intoxicated to the extent of automatism even by their own hand. Thankfully, involuntary and mentally non-culpable acts are recognized herein as a fundamentally beyond the scope of criminal liability. 

Overview

[1] Following a party at which he had consumed alcohol and “magic mushrooms”, Matthew Winston Brown violently attacked Janet Hamnett, a person he did not know and who had done nothing to invite the assault. At the time, Mr. Brown was in what the trial judge described as a “substance intoxication delirium” that was so extreme as to be “akin to automatism” (2020 ABQB 166, 9 Alta. L.R. (7th) 375, at para. 87). While capable of physical movement, he was in a delusional state and had no willed control over his actions. Mr. Brown’s extreme intoxication akin to automatism was brought about by his voluntary ingestion of the magic mushrooms which contained a drug called psilocybin. Mr. Brown was acquitted at trial. The Alberta Court of Appeal set aside that verdict and convicted him of the general intent offence of aggravated assault.

[2] At common law, automatism is “a state of impaired consciousness, rather than unconsciousness, in which an individual, though capable of action, has no voluntary control over that action” (R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 156). It is sometimes said that the effect of automatism is to provoke physical involuntariness whereby there is no connection between mind and body (see Rabey v. The Queen, 1980 CanLII 44 (SCC), [1980] 2 S.C.R. 513, at p. 518). Examples often given include the involuntary physical movement of an individual who has suffered a heart attack or seizure. Conduct that is involuntary in this sense cannot be criminal (see R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89, at paras. 53‑56, relying in particular on Rabey, at p. 519, per Ritchie J., and at p. 545, per Dickson J., as he then was, dissenting but not on this point).

[4] These are not drunkenness cases. The accused in each of these appeals consumed drugs which, they argued, taken alone or in combination with alcohol, provoked psychotic, delusional and involuntary conduct, which are reactions not generally associated with drunkenness. As I note below, there is good reason to believe Parliament understood that alcohol alone is unlikely to bring about the delusional state akin to automatism it sought to regulate in enacting s. 33.1 of the Criminal Code, R.S.C. 1985, c. C‑46. As Lauwers J.A. wrote in R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, “it is not clear that extreme alcohol intoxication causes non-mental disorder automatism as a matter of basic science” (para. 288). In any event, these reasons say nothing about criminal liability for violent conduct produced by alcohol alone short of the psychotic state akin to automatism experienced by Mr. Brown and spoken to by the trial judge. I specifically leave intact the common law rule that drunkenness, absent clear scientific evidence of automatism, is not a defence to general intent crimes, including crimes of violence such as sexual assault.

[9] Accordingly, the accused risks conviction for the relevant general intent offence — in Mr. Brown’s case, for aggravated assault — based on conduct that occurred while they are incapable of committing the guilty act (the actus reus) or of having the guilty mind (mens rea) required to justify conviction and punishment. They are not being held to account for their conduct undertaken as free agents, including the choice to ingest an intoxicant undertaken when neither the risk of automatism nor the risk of harm was necessarily foreseeable. Instead, the accused is called to answer for the general intent crime that they cannot voluntarily or wilfully commit, an offence for which the whole weight of the criminal law and ss. 7 and 11(d) say they may be morally innocent. To deprive a person of their liberty for that involuntary conduct committed in a state akin to automatism — conduct that cannot be criminal — violates the principles of fundamental justice in a system of criminal justice based on personal responsibility for one’s actions. On its face, not only does the text of s. 33.1 fail to provide a constitutionally compliant fault for the underlying offence set out in its third paragraph, it creates what amounts to a crime of absolute liability.

[13] The violations of the rights of the accused in respect of the principles of fundamental justice and the presumption of innocence occasioned by s. 33.1 are grave. Notwithstanding Parliament’s laudable purpose, s. 33.1 is not saved by s. 1 of the Charter. The legitimate goals of protecting the victims of these crimes and holding the extremely self-intoxicated accountable, compelling as they are, do not justify these infringements of the Charter that so fundamentally upset the tenets of the criminal law. With s. 33.1, Parliament has created a meaningful risk of conviction and punishment of an extremely intoxicated person who, while perhaps blameworthy in some respect, is innocent of the offence as charged according to the requirements of the Constitution.

[14] In the case of Mr. Brown, and on the strength of the findings of fact at trial, the conclusion may be plainly stated. Mr. Brown might well be reproached for choosing to drink alcohol and ingest magic mushrooms prior to the harm suffered by Ms. Hamnett, but that blame cannot ground criminal liability for the aggravated assault that occurred while he was in a state of delirium akin to automatism. On a constitutional standard, he did not commit the guilty act of aggravated assault voluntarily and he was incapable of forming even the minimally‑required degree of mens rea required for conviction of that offence. In my respectful view, to punish him in these circumstances, however exceptional they might be, would be intolerable in a free and democratic society. The law imposes the solemn and onerous duty on this Court to declare s. 33.1 unconstitutional (see Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486 (“Motor Vehicle Reference”), at p. 497). For the reasons that follow, I would set aside the judgment of the Court of Appeal, declare s. 33.1 to be of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982, and restore Mr. Brown’s acquittal rendered at trial.

II.            Background

[16] As Mr. Brown would testify at his trial, at around 1:30 a.m. he felt “wonky” and began to “los[e] [his] grip on reality” (A.R., vol. V, at p. 13). Without any memory of having done so, Mr. Brown removed his clothing and left the house in an agitated state at around 3:45 a.m., running naked and barefoot into the cold winter night. His friends searched for him for about 10 to 15 minutes and then called the police.

[17] In a nearby house, Janet Hamnett was awoken around 4:00 a.m. by a loud noise. When she went to investigate, Ms. Hamnett was attacked by someone she did not know who she later described as a huge presence screaming at the top of his lungs. The intruder was Mr. Brown. Ms. Hamnett fell to the ground and put her arms up as he beat her repeatedly with a broken broom handle. With her head, face and arms covered in blood, she managed to get to a bathroom and lock the door. Mr. Brown left the house and continued into the street. When all appeared quiet Ms. Hamnett sought refuge at a neighbour’s house, at which time the police were called. The attack left her with cuts and contusions, as well as broken bones in her right hand which resulted in permanent injuries. She also suffered psychological harm from the incident.

[18] At about 5:00 a.m., Mr. Brown broke into the Varshney residence a kilometer away by throwing a heavy object through the front door window. Mr. and Mrs. Varshney, who did not know Mr. Brown, heard screaming and the sound of breaking glass. They were able to take shelter in their bedroom and call the police. The police found Mr. Brown lying naked on the floor of a bathroom. He was whispering and appeared confused by his surroundings; his feet were visibly bruised and bloodied. Mr. Brown complied with police instructions and was taken for medical care. He recalled coming to in hospital then waking later in a jail cell. Mr. Brown later said he had no memory of what transpired at either of the two homes.

[19] Mr. Brown had no previous criminal record and no history of mental illness. ...

[20] ... He claimed to have been so impaired by the consumption of psilocybin that his actions were involuntary and that he did not have the necessary mens rea for conviction of aggravated assault or mischief to property. Expert evidence adduced at trial confirmed that that the psilocybin was the “clear causative factor” for what was described as the accused’s delirium (trial reasons, at para. 73). On the basis of this evidence, Mr. Brown was said to have no voluntary control over his conduct at the time.

[21] The Crown invoked s. 33.1 as a means of precluding Mr. Brown from relying on self-induced intoxication akin to automatism as a defence to the charge of aggravated assault. Mr. Brown answered that, insofar as it prevented him from raising automatism as a defence, s. 33.1 violated ss. 7 and 11(d) of the Charter and could not be saved by s. 1. He said that the defence should be available to him against both charges, including the offence relating to the aggravated assault to which s. 33.1 purportedly applied.

IV . Issue

[40] The only issue is whether s. 33.1 violates ss. 7 and 11(d) of the Charter and, if so, whether it can be saved under s. 1.

[41] Section 33.1 provides:

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2) For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self- induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3) This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

V.           Analysis

A.           Intoxication and Criminal Liability

[42] While Mr. Brown was convicted of aggravated assault, it is of central importance to recall that s. 33.1 blocks the defence of automatism for all general intent crimes designated in s. 33.1(3), including sexual assault and some other forms of gendered violence. ...

[43] The common law has developed an unsympathetic view towards offenders who argue that their intoxication rendered them incapable of forming the necessary guilty mind. In principle, intoxication does not allow the guilty to evade the stigma of proper conviction or the exacting of fair punishment in Canadian law. Intoxication short of automatism is never a defence to crimes of general intent, including manslaughter, assault, and sexual assault (see Director of Public Prosecutions v. Beard, [1920] A.C. 479 (H.L.); Leary, at pp. 57-60). ... It bears repeating: The rule that intoxication is not a defence to general intent crimes remains untouched by this appeal, except in the case of intoxication akin to automatism.

[45] It bears recalling, then, that most degrees of intoxication do not provide a defence to crimes of general intent like the offence of aggravated assault from which Mr. Brown was convicted on appeal. Only the highest form of intoxication — that which results in a person losing voluntary control of their actions — is at issue here: extreme intoxication akin to automatism as a defence to violent crimes of general intent and, then again only intoxication that is self-induced.

[46] The defence of automatism denies the element of voluntariness and therefore negates the actus reus of the offence (R. v. Chaulk, 1990 CanLII 34 (SCC), [1990] 3 S.C.R. 1303, at p. 1321; R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871, at p. 896). Involuntary conduct is understood to be genuinely exculpatory because, while the prohibited act was harmful, the accused lacks the capacity to answer for what they did (J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law (2007), at p. 142). A physically involuntary act, however wrongful in outward appearance, is not a guilty act that can be imputed to an accused.

[47] Automatism is reflected in involuntary movements that may be associated with heart attacks, seizures or “external” shock, or conditions such as sleepwalking or delirium, where the body moves but there is no link between mind and body (Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386 (H.L.), at p. 409; Rabey, at p. 523). Physical voluntariness is a principle of fundamental justice and a requirement of all true criminal offences, central to the criminal law’s desire to avoid convicting the morally innocent (Daviault, at p. 74; R. v. Ruzic, 2001 SCC 24, [2001] 1 S.C.R. 687, at paras. 46‑47; R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 S.C.R. 575, at para. 45). Absent a willed movement of the body, the Crown cannot prove the actus reus beyond a reasonable doubt (R. v. Théroux, 1993 CanLII 134 (SCC), [1993] 2 S.C.R. 5, at pp. 17‑18). This is distinguished from moral involuntariness, which describes scenarios where the accused retains conscious control over their body but has no realistic choice but to commit a guilty act (Ruzic, at para. 44).

[48] In addition, an automaton cannot form the mens rea, or guilty mind, if their actions are involuntary. Where an accused has no conscious awareness of their movements, they necessarily cannot intend their involuntary acts. Imposing criminal liability in the absence of proof of fault also offends the principles of fundamental justice (Motor Vehicle Reference, at pp. 513‑15).

[49] I recall that, in Bernard, Wilson J. wrote that in a case of true intoxication akin to automatism, it may be improper to substitute proof of intention to become intoxicated for proof of intention to commit the violent offence (pp. 889‑90). The choice to become intoxicated through legal or illegal means, a choice that many Canadians make, cannot be said to be the same as an intention to perpetrate the illegal act. The substitution violates the presumption of innocence, because a person can be convicted despite a reasonable doubt about whether the essential elements of the offence have been established (Oakes, at p. 134; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 656).

[50]... It is certainly plain that intoxicated violence is a serious social problem. Whatever proportion of this phenomenon relates to involuntary conduct, it is notable that extreme intoxication akin to automatism is an exigent defence requiring the accused to show that their consciousness was so impaired as to deprive them of all willed control over their actions. This is not the same as simply waking up with no memory of committing a crime. A failure to remember does not prove that an individual was acting involuntarily. Nor is it the same as suffering a psychotic episode where physical voluntariness remains intact. But even if one were to accept that the defence is a rarity, it hardly seems conclusive to either side of the debate. It is cold comfort to the victim of extreme intoxicated violence that their plight is a rare one. And it is equally chilling to think that denying the defence to a person who is morally and physically incapable of committing a crime is somehow palatable in that it is a rare occurrence.

(1) Daviault

[54] The majority in Daviault thus modified the rule that intoxication is not a defence to crimes of general intent. Exceptionally, a defence of extreme intoxication akin to automatism, including self-induced extreme intoxication, could be raised by an accused, although intoxication short of automatism would still not be a defence, as it will not interfere with someone’s ability to form the minimum mental element required for a general intent offence (pp. 99-101). Cory J. invited Parliament to legislate to meet what he considered to be the rare case of this degree of intoxication, noting that it was “always open to Parliament to fashion a remedy which would make it a crime to commit a prohibited act while drunk” (p. 100).

[56] Thus, following Daviault, at common law, an accused was entitled to an acquittal for a general intent offence if they could prove, on a balance of probabilities, that they committed the acts involuntarily, while in a state of extreme intoxication akin to automatism. In order to do so, the accused must adduce expert evidence.

[62] Although both Daviault and Parliament were focussed on “drunkenness”, the parliamentary record and facts of this appeal and the Sullivan and Chan appeals suggest that the defence of extreme intoxication akin to automatism will generally not be relevant in cases involving alcohol alone. The experts in this case explained, with reference to the legal definition of automatism, that psilocybin may induce delusions, psychotic episodes, confusion and disorientation (A.R., vol. III, at pp. 241 and 315). Dr. Kalant, in contrast, testified before Parliament that, normally, alcohol progressively decreases nerve cell activity in the brain until a person becomes both unconscious and incapable of physical movement (Sullivan and Chan appeals, A.R., vol. VI, at p. 93), an effect which would not satisfy the state of impaired conscious and unwilled movements necessary for a true state automatism. Claims of extreme intoxication must, of course, be assessed with reference to the facts and expert evidence adduced at the trial. It would be inappropriate here to foreclose a finding of extreme intoxication through any intoxicant taken alone, if medical and scientific evidence adduced compel such a conclusion.

[63] I now turn to the question of whether s. 33.1 infringes ss. 7 and 11(d) of the Charter, as alleged by Mr. Brown.

B. Section 33.1 Infringes Sections 7 and 11(d)

(2) Threshold Issue: Internal Balancing Under Section 7

[70] ... Section 33.1 affects the substantive rights of the accused subject to prosecution by the state. The equality and dignity interests of women and children are certainly engaged as potential victims of crime — but in this context, by virtue of the accused’s actions, not of some state action against them. This is qualitatively different from the balancing undertaken for example in Mills, where it was state action — through the application of an evidentiary rule for the production of records to the accused relating to the complainant — that directly affected both the accused and the complainant. Section 33.1 operates to constrain the ability of an accused to rely on the defence of automatism but nothing in the provision limits, by the state’s action, the rights of victims including the ss. 7, 15 and 28 Charter rights of women and children. These interests are appropriately understood as justification for the infringement by the state. ... they are best considered under s. 1.

(3) Interpretation of Section 33.1

[76] What does the impugned provision in fact say? Section 33.1(1) eliminates the defence of self‑induced intoxication akin to automatism applied to the violent offences identified in s. 33.1(3) where the accused departs markedly from the standard of care described in s. 33.1(2). It opens with the words “[i]t is not a defence”. These words have been consistently interpreted in the context of other provisions of the Criminal Code as invalidating or limiting a defence (R. v. George, 2017 SCC 38, [2017] 1 S.C.R. 1021, at para. 7; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3). Nowhere does s. 33.1 create a new offence, with or without the same penalties, be it a predicate act offence of self‑induced extreme intoxication or a new criminal negligence offence. The accused faces the full stigma of conviction and the full brunt of punishment for the general intent offence pointed to in s. 33.1(3). ...  In none of their cases were they charged with dangerous or negligent self-induced extreme intoxication causing bodily harm. Extreme voluntary intoxication may well be an instance of what many Canadians see as morally reprehensible conduct, but s. 33.1 — or any other act of Parliament for that matter — does not designate it an unlawful act.

[77] I agree with LeBel J. in Bouchard-Lebrun when he said that s. 33.1 applies when three conditions are met: (1) that the accused was intoxicated at the material time; (2) the intoxication was self‑induced; and (3) that the accused departed markedly from the standard of reasonable care generally recognized in Canadian society by interfering or threatening to interfere with the bodily integrity of another person (para. 89). ...

[80] Section 33.1(1) blocks the defence of automatism to general intent offences where the automatism was the result of self‑induced intoxication and the accused departed markedly from the standard of care described in s. 33.1(2). Under s. 33.1(2), an accused departs markedly from the standard of care where:

. . . the person, while in a state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

[83] Moreover, no plausible reading of the text suggests that self-induced intoxication brings with it a reasonable foreseeability of bodily harm, as the voir dire judge rightly wrote in this case, at paras. 36-37. In addition, I agree with Paciocco J.A. in Sullivan that the problem is not overcome by designating the violent act as the marked departure. This is so because, as he wrote, “moral fault cannot come from a consequence alone” (para. 94). Drawing on this Court’s judgment in Creighton, at p. 58, he explained that the mental fault inherent in penal negligence “lies in [the] failure to direct the mind to a risk which the reasonable person would have appreciated” (para. 94). If the marked departure from the norm was simply the violent act, the law countenances a form of absolute liability. On its face, and notwithstanding the reference to “departed markedly” in subs. (1), s. 33.1 is not a fault-creating provision but one that sets conditions of liability for intoxicated violence. The fault is that which is already required in the underlying offence mentioned in s. 33.1(3).

[86] The whole of the text confirms this. Section 33.1(1) distinguishes self‑induced intoxication from the prohibited offence, meaning the two cannot be the same. It provides that no defence is available where “the accused, by reason of self‑induced intoxication, lacked the general intent or the voluntariness required to commit the offence”. This is telling and clearly indicates that what Parliament sought was to impose liability for the charged offence, namely the assaultive behaviour, and not the act of self‑induced intoxication itself. Furthermore, in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, Moldaver J. interpreted the phrase “[i]t is not a defence” as precluding an independent pathway to conviction, as was similarly argued in that case (para. 82). Here, rather than an alternate route to liability, the word “defence” refers to a defence advanced by the accused that would entitle them to an acquittal.

[87] Counsel was unable to cite a single case in the 25‑year history of s. 33.1 that adopted the interpretation proposed here by the Crown apart from the majority view of the Court of Appeal in this case....

(4) Breaches of Sections 7 and 11(d) of the Charter

[89] Section 33.1 thus applies whenever a person interferes with the bodily integrity of another while in a state of extreme intoxication akin to automatism, regardless of whether a loss of awareness or control or a risk of harm was foreseeable. This breaches ss. 7 and 11(d) of the Charter, even if one accepts Sopinka J.’s premise in Daviault that individuals who create the conditions for their loss of control may be in some way morally blameworthy.

(a)           Mens Rea as Required by Section 7

[90] It is a principle of fundamental justice that proof of penal negligence, in the form of a marked departure from the standard of a reasonable person, is minimally required for a criminal conviction, unless the specific nature of the crime demands subjective fault (Creighton, at pp. 61‑62; Vaillancourt, at pp. 653‑54; DeSousa, at p. 962). If the offence takes the form of a predicate act offence, objective foreseeability of harm can be constitutionally sufficient (DeSousa, at p. 962).

[92] For this reason, while the provision applies to those who recklessly invite their loss of control, it also captures the sudden and unexpected onset of involuntariness produced by “self-induced intoxication”, for example the patient who experiences an overwhelming and unexpected reaction to a prescribed pain medication and injures another in a state of involuntariness. The patient may have intended to experience the ordinary pain relief effects of the medication, but in those circumstances it would be beyond the contemplation of a reasonable person to foresee a loss of control or awareness of their behaviour.

[93] Section 33.1 also imposes criminal liability where a person’s intoxication carries no objective foreseeability of harm. Just as it draws no distinction based on the seriousness of the effects of intoxication, neither does s. 33.1 draw any distinction based on the risk of harm, which may vary depending on the intoxicant in question. It is certainly true that some inherently risky forms of self‑intoxication — such as mixing alcohol with dangerous street drugs — may carry reasonably foreseeable harm. The difficulty is that s. 33.1 applies even where the intoxicant in question is typically known for its relaxing or therapeutic properties: [translation] “. . . the provision seems capable of applying to people who have done little or nothing for which they can be reproached” (H. Parent, “La constitutionnalité de l’article 33.1 du Code criminel: analyse et commentaires” (2022), 26 Can. Crim. L. Rev. 175, at p. 190). Forms of self‑intoxication that carry reasonably foreseeable harm are more blameworthy than those that do not because the individual has proceeded in spite of the known risks. Yet s. 33.1 captures both indifferently on the premise that all extreme self-intoxication is blameworthy.

[95]                          Instead, s. 33.1 deems a person to have departed markedly from the standard of care expected in Canadian society whenever a violent act occurs while the person is in a state of extreme voluntary intoxication akin to automatism. This is so even where a loss of control or awareness of one’s behaviour and a risk of harm was unforeseeable and even where the accused’s conduct did not in fact depart markedly from the standard of a reasonable person. In doing so, s. 33.1 runs afoul of the principle of fundamental justice that penal liability requires proof of fault reflecting the offence and punishment faced by the accused (Motor Vehicle Reference, at pp. 513‑15; Vaillancourt, at pp. 653‑54). Since s. 33.1 allows a court to convict an accused without proof of the constitutionally required mens rea, s. 33.1 violates s. 7(Daviault, at p. 90). By allowing courts to convict individuals of a crime without proof of mens rea, s. 33.1 turns those offences, which carry the possibility of imprisonment, into what amounts to absolute liability offences, contrary to s. 7 of the Charter (Motor Vehicle Reference, at p. 515).

(b)         Voluntariness as Required by Section 7

[96] Section 33.1 also directs that an accused person is criminally responsible for their involuntary conduct. Because involuntariness negates the actus reus of the offence, involuntary conduct is not criminal, and Canadian law recognizes that the requirement of voluntariness for the conviction of a crime is a principle of fundamental justice (Luedecke, at para. 53; Daviault, at pp. 91‑92). Mr. Brown was convicted by the Court of Appeal of aggravated assault, for actions that he did not commit voluntarily. This breaches s. 7.

(c) Substitution as Prohibited by Section 11(d)

[99] ... Moldaver J. explained in Morrison ... Yet as he observed, the presumption of innocence will only be satisfied if proof of the substituted fact leads “inexorably” to the conclusion that the essential element it replaces exists (para. 52). This connection must hold true “in all cases” and not be based on a mere probability or common sense inference (para. 53). Otherwise, the substitution may result in the accused being convicted, based on proof of the substituted fact, despite the existence of a reasonable doubt as to the essential element of the offence that it replaces.

[104] Section 33.1 fails the test in Morrison and amounts to a constitutionally improper substitution. While an accused who loses conscious control and assaults another person after a night of substance abuse is undoubtedly morally blameworthy, s. 33.1 faces obvious difficulties. It does not discern, for example, between the accused and morally blameless individuals who voluntarily consume legal intoxicants for personal or medical purposes. It therefore cannot be said that, “in all cases” under s. 33.1, the intention to become intoxicated can be substituted for the intention to commit a violent offence. Moreover, even in the case of the accused who voluntarily ingested an illegal drug like magic mushrooms, proof of self-induced intoxication does not lead inexorably to the conclusion that the accused intended to or voluntarily committed aggravated assault in all cases.

[105] In sum, the effect of s. 33.1 is to invite conviction even where a reasonable doubt remains about the voluntariness or the fault required to prove the violent offence, contrary to the presumption of innocence under s. 11(d).

(d) Contemporaneity

[107] ... Contemporaneity holds that the guilty mind must concur with the prohibited act, although this principle is applied flexibly (R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at p. 156). Contemporaneity has not yet been recognized as a principle of fundamental justice, and I respectfully decline to do so here. The mens rea, voluntariness, and improper substitution breaches remain the most accurate and relevant way of describing the way in which s. 33.1imposes absolute liability, contrary to the principles of fundamental justice.

[109] I turn to a consideration of whether s. 33.1 can be saved under s. 1.

C.            Justification Analysis

[118] What, then, are the objectives of s. 33.1 and are they properly identified for conducting the justification exercise under s. 1?

[119] It is plain that s. 33.1, above all things, blocks the defence of automatism for the extremely intoxicated offender that was recognized in Daviault as an exception to the intoxication rules. Parliament did so with two specific purposes in mind. First, it sought to protect the victims of extremely intoxicated violence, with particular attention to women and children whose equal place in society is compromised by sexual assault and other violent crimes of general intent in such circumstances. Second, it sought to call offenders to answer for their choice to voluntarily ingest intoxicants, where that choice creates a risk of violent crime. ...

[120] I share the view that the protective purpose is sufficiently pressing and substantial to warrant limiting Charter rights.

[126] ... Here, the objective concerns the choice to create a risk, and this choice is not the conduct Parliament aims to criminalize. In other words, the objective is separate from the gravamen of the offence (i.e., the assault), which ensures that the ends and the means remain distinct. Stated in this manner, accountability in this context is pressing and substantial and fits appropriately within the Oakes analysis. ...

(2) Proportionality
(a) Rational Connection

[128] At this stage, the Crown must show, first, that s. 33.1 is rationally connected to holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state and, second, that it is rationally connected to protecting vulnerable groups from extremely intoxicated violence. There must be “a causal connection between the infringement and the benefit sought on the basis of reason or logic” (RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 S.C.R. 199, at para. 153).

[132] ... Thus, an individual who consumes an intoxicant with psychosis-inducing effects, including those who know they lost control of their conduct while in a drug-induced psychosis in the past, will be caught by s. 33.1. It is reasonable that Parliament would expect the provision to hold some modest deterrent effect for such individuals. This deterrent effect acts [TRANSLATION] “upstream”, as Professor Parent writes (p. 187), to dissuade those contemplating this kind of intoxication. As such, s. 33.1 is rationally connected to its protective purpose.

[134] In addition, s. 33.1 is rationally connected to the objective of holding individuals accountable, in as full a manner as possible, for the choice to become extremely intoxicated and the violence committed while in that state. It is obvious that where a person is foreclosed from advancing a defence that could result in an acquittal, that person is held accountable for something they otherwise would not be.

(b) Minimal Impairment

[135] ... The question is whether s. 33.1 falls within a range of reasonable alternatives open to Parliament to achieve its objectives; if it is within this range, it should not fail the minimal impairment test merely because, in the Court’s view, an alternative would have been better suited to the objective (see RJR-MacDonald, at para. 160). ...

[136] I have no hesitation imagining less impairing options. Many scholars have advanced options that would trench less on the rights of the accused ... Paciocco J.A. concluded that a stand-alone offence of criminal intoxication would achieve similar objectives as s. 33.1 and would arguably improve on the protective purpose by making deterrence more focused on the intoxication itself (paras. 132-34). It is certainly true, as the Minister said in Parliament, that the lesser stigma and lesser penalties associated with a new offence would punish intoxicated perpetrators less severely for their wrongs than would a conviction for the underlying offence. But it is an alternative to the consequence of allowing the extremely intoxicated offender to escape punishment altogether.

[137] Apart from the stand-alone offence, others have proposed alternative paths to liability for the underlying violent offence based on a criminal negligence standard more carefully crafted than that advanced by s. 33.1. One example is that proposed by the voir dire judge. He accepted Parliament’s goal of holding people accountable for a violent act when they have departed from a minimum standard of care by voluntarily consuming intoxicants (para. 79). However, he observed that this standard could be achieved in a less impairing way if s. 33.1 incorporated a true objective fault standard that clearly attaches to the act of self-induced intoxication, which would allow the trier of fact to consider whether a loss of control and bodily harm were both reasonably foreseeable at the time of intoxication (para. 80). ...

[138] In terms of the minimal impairment analysis, the stand-alone offence fails to meet Parliament’s full objective and thus was not a viable alternative. It would have labelled Mr. Brown’s offence as one of negligent or dangerous intoxication, rather than stigmatize him for the aggravated assault. ... This would be a particular failure in respect of Parliament’s goal to hold perpetrators to account in as full a manner as possible for the choice to become extremely intoxicated and the violence committed while in that state ...

[139] The alternative proposed by the voir dire judge could however allow an accused to be convicted for the underlying violent act and not simply negligent or dangerous intoxication. Incorporating a true marked departure standard into s. 33.1 would allow it to achieve the minimum objective fault standard required by the Constitution (in the case of offences that are not constitutionally required to contain subjective fault, per R. v. Martineau, 1990 CanLII 80 (SCC), [1990] 2 S.C.R. 633). Indeed, Khullar J.A. recognized that this alternative would be “less problematic”.

[141] In light of these alternatives, in particular that proposed by the voir dire judge, which would have achieved Parliament’s accountability objective in a real and substantial manner, I conclude that s. 33.1 is not minimally impairing. Parliament’s objectives of protection and accountability would have been partially met by the stand-alone offence and even more completely met had Parliament properly followed through on its announced design for a law based on a constitutionally-compliant standard of criminal negligence. But I acknowledge that this is a close call and that experts who have studied the alternatives are not of a single view. ...

[142] While I conclude that s. 33.1 is not minimally impairing of an accused’s ss. 7 and 11(d) rights, I recognize that Parliament is entitled to a degree of deference in measuring the reasonable character of policy alternatives. But even if those who defend the law as minimally impairing were right, I am unequivocally of the view that s. 33.1 must fail on the last branch of the proportionality test which reveals the most profound failings of the provision. ...

(c) Proportionality Between Effects and Objectives

[143] At the final stage under s. 1, the question is whether there is proportionality between the overall effects of the Charter-infringing measure and the legislative objectives (Oakes, at p. 139; Hutterian Brethren, at paras. 72‑73). This invites the broadest assessment of the benefits of s. 33.1 to society, weighed against the cost of the limitations to ss. 7 and 11(d) of the Charter (see K.R.J., at para. 77; Bedford, at para. 123; Carter, at para. 122). Balancing requires a court to “transcend the law’s purpose and engage in a robust examination of the law’s impact on Canada’s free and democratic society ‘in direct and explicit terms’” (K.R.J., at para. 79).

[145] In my view, Mr. Brown is right on this point. In the result, the meaningful benefits of s. 33.1 do not outweigh the costs, in particular to what the voir dire judge describes as the “sacrosanct principles” integral to our criminal justice system, including the presumption of innocence (para. 89).

(i) Salutary Effects

[146] By including general intent crimes of sexual and domestic violence within s. 33.1(3), the amendments to the Criminal Code do help to ensure the rights of women and children to equal protection and benefit of the law as guaranteed by the Charter, as promised in the preamble. The provision gives expression to the close and harmful association between extreme self-induced intoxication and violence. By removing the defence in s. 33.1(1), it ensures that the morally blameworthy conduct of self-induced extreme intoxication is not an excuse at law for that violence, which is a plain social good. Section 33.1 voices society’s strong intolerance for such behaviour, and affirms society’s commitment to the equality and security rights of victims vulnerable to intoxicated crime.

[148] Section 33.1 also provides societal benefit through its communicative and deterrent effects. Khullar J.A. recognized not only that s. 33.1 contributes to a social ethos of disapproval of extreme self-induced intoxication, she wrote that it “serves the important role of signalling to people that they must be aware and cautious that their alcohol and drug use may lead to consequences they do not intend and cannot control” ...

[151] At the end of the day, Parliament’s own accountability objective was undone by the very means it chose to pursue it. In holding the extreme self-intoxicated offender to account, s. 33.1 does not require objective foreseeability of the risk of falling into a state of automatism, much less the risk of consequential harm. Parliament’s goal may have been to impose personal responsibility for the creation of the risk of harm, but in the absence of a requirement of reasonable foreseeability, that goal is frustrated. ...

(ii) Deleterious Effects

[152]   The fundamental flaw of s. 33.1 is the risk of wrongful convictions it presents. By denying even a small fraction of accused persons the ability to raise a reasonable doubt as to the voluntariness or mens rea elements of the offence charged, s. 33.1 permits an individual to be convicted, and subject to the stigma, liberty restrictions and other consequences of a criminal conviction, for involuntary conduct. Section 33.1 runs counter to the fundamental organizing principles that are necessary to allow individuals to face the power of the state in the criminal justice system fairly, in particular the all-important presumption of innocence. It enables conviction for conduct that an accused person was not aware of and could not control and therefore cannot be a “guilty act” as defined by the underlying offences. This result follows even where individuals ingest alcohol or drugs in common-place situations where there is no subjective or objective foresight of automatism or violence. [PJM Emphasis]

[155] But even if its compass is narrow and its application rare, s. 33.1 limits not just one but three fundamental rights of the accused. It enables conviction where the accused acted involuntarily, where the accused did not possess the minimum level of fault required, and where the Crown has not proven beyond a reasonable doubt the essential elements of the offence for which an accused is charged. These limitations operate to put in place a regime of absolute liability that undermines many of the core beliefs used to structure our system of criminal law. It is difficult to imagine more serious limitations than the denial of voluntariness, mens rea, and the presumption of innocence all in one. An accused may be morally blameworthy in some measure for voluntarily consuming intoxicants but that blame is not the measure of guilt at law for the underlying offences set out in s. 33.1(3). With great respect, I cannot agree with Slatter J.A., who said in the balancing of salutary and deleterious effects, that “[n]o one who is truly morally innocent is impacted [by s. 33.1]” (para. 81). [Emphasis by PJM]

[158 ]One is hard pressed to disagree with the trial judge in R. v. Chan, 2018 ONSC 3849, 365 C.C.C. (3d) 376, who observed that “Parliament is entitled to express the view that extreme self‑intoxication is morally blameworthy behaviour” (para. 152). But I respectfully disagree with him where he wrote “the morally innocent will not be punished” (para. 156). Mr. Brown may not have been blameless in deciding to consume the magic mushrooms, but he is not guilty of the crime with which he was charged according to the requirements of the Charter.

[161] The voir dire judge rightly recognized that these principles exist to ensure that the morally innocent are not convicted (para. 89). Section 33.1 creates the risk that a person will be convicted of the underlying offence on the basis of proof of the blameworthiness associated with extreme intoxication, without regard to the objective foreseeability of harm. It holds a person to answer for their involuntary conduct. It does so without due regard to the presumption of innocence which protects against arbitrary exercise of power by the state. Potentially, s. 33.1 could apply to anyone who voluntarily consumes an intoxicant, even if they do so with restraint or for medical reasons where the reasonable person would not have foreseen even trivial or transitory physical harm. This is an extremely serious deleterious effect.

[162] An additional deleterious effect is that s. 33.1 disproportionately punishes for unintentional harm, contrary to the principle that punishment be proportionate to the gravity of the offence. Section 33.1 requires the offender to face full responsibility of the underlying crime even though the actus reus and mens rea of the violent offence are not met. They are exposed, at sentence, to the full brunt of punishment for that offence, subject to the sentencing judge’s exercise of discretion, according to law. This must be the focus of the deleterious effects analysis since, under s. 33.1(3), it is the violent offence for which the accused is convicted and punished. It bears repeating: the gravamen of Mr. Brown’s charged offence is not extreme intoxication, it is the violent assault that he is said to have committed while he did not have the capacity for voluntary action.

(iii)      Weighing the Salutary and Deleterious Effects

[165] In my respectful view, the Crown has not discharged its burden of showing that the benefits suggested by the evidence are fairly realized by s. 33.1. The Crown warns of widespread sexual and intimate partner violence, with the implication that such gendered violence will go undeterred in the absence of s. 33.1. I accept that such violence exists in the severe magnitude described by the Crown. But even the current common law precludes an accused from relying on voluntary intoxication as a complete answer to crime in a broad sweep of instances of intoxicated violence. It is not the case that in the absence of what amounts to a rule of absolute liability in s. 33.1 such violence will go unpunished or undeterred. Rather, in relation to the evidence presented by the Crown, in the absence of s. 33.1, the benefits tied to accountability and protection will continue to be met, to a not unmeaningful extent, through the application of common law rules which prevent the defence of intoxication including to general intent crimes of violence. This would be truer still if a more fairly crafted rule than s. 33.1 was enacted by Parliament.

[166] Some rights, such as the protections in ss. 7 and 11(d), will not be easily outweighed by collective interests under s. 1. That is the case here, as s. 33.1 trenches on fundamental principles at the very core of our criminal law system, including the presumption of innocence upon which the fairness of the system itself depends. Section 33.1 creates a liability regime that disregards principles meant to protect the innocent, and communicates the message that securing a conviction is more important than respecting basic principles of justice. Balancing the salutary and deleterious effects of the law, I respectfully conclude that the impact on the principles of fundamental justice is disproportionate to its overarching public benefits. For these reasons, the limits s. 33.1 places on ss. 7 and 11(d) of the Charter cannot be justified in a free and democratic society. [Emphasis by PJM]

VI. Conclusion

[167] I would answer the constitutional questions as follows: s. 33.1 of the Criminal Code infringes ss. 7 and 11(d) of the Charter and the infringements are not justified under s. 1 of the Charter. I would allow Mr. Brown’s appeal. Section 33.1 should be declared unconstitutional and of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. The trial judge concluded in this case, based on the evidence brought before her by the defence, that Mr. Brown was in a state of extreme intoxication akin to automatism. That finding was not challenged on appeal. His acquittal on the count of break and enter and committing aggravated assault was wrongly set aside because the Court of Appeal erred in deciding that s. 33.1 is constitutional. As a result, I would restore Mr. Brown’s acquittal.

R v Grant, 2022 ONCA 337

[May 2, 2022] Exculpatory Identification Evidence and Jury Instructions - Limits on Chartier [Reasons by David Brown J.A. with Alexandra Hoy and Coroza JJ.A. concurring.]

AUTHOR’S NOTE: This case turns on the importance of highlighting to a jury that evidence favourable to the defence does not need to be proven to any degree. It is sufficient that it raises a reasonable doubt. In the case of distinguishing features testified to by witnesses, this is no different. Jury caution about relying on eye-witness evidence to convict someone does not apply to relying on it to acquit someone. However, counsel using this case should note that it explicitly limits the application of Chartier (ie. the point that a single significant differentiating feature means there is no identification just a resemblance). Basically, the limitation is that if there is other evidence consistent with the accused being the culprit (ie. cell phone tower evidence putting them near the scene or CCTV evidence) then the principle in Chartier does not apply cleanly. However, the jury still must be give the distinguishing feature summary along with a W(D) instruction indicating that this evidence need only raise a reasonable doubt. 

I. OVERVIEW

[1] Rala Fedrick was shot and killed around 1:50 a.m. on July 6, 2014. He was standing with several people on George Street, in Toronto, just south of Seaton House, a shelter for homeless men. Although numerous CCTV cameras populate George Street, the area in which Fedrick1 was shot was not covered by any camera.

[2] The appellants, Shaqwan Kawano and Alton Grant, were friends. They were tried and convicted by a jury of first-degree murder for Fedrick’s death. Both appeal their convictions. For the reasons set out below, I would allow the appeals and direct new trials.

II. OUTLINE OF EVENTS

A. THE HUG

[4] Around 4:00 p.m. on the afternoon of July 5, 2014, Kawano saw Fedrick grab the buttocks of Tasha Simpson while hugging her near Seaton House.

[5] The Crown alleged that Simpson was Kawano’s girlfriend; Kawano disputed the point. The evidence disclosed that five days after Fedrick was killed, Simpson and Kawano together moved into a rental condo on Park Lawn Road.

[6]  Neither Simpson nor Kawano testified.

[7]  Two witnesses to the hug did: Sherece Brown-Love and Monia Cargioli.

[8]  Brown-Love was ten steps away from Kawano and Simpson when she heard Simpson say to Kawano “There’s no need to get mad. He’s just a friend.” Kawano then “stomped off”. Brown-Love testified that it was a “mild argument” and neither Simpson nor Fedrick looked upset afterwards.

[9] Cargioli witnessed the hug and described it as “a bit inappropriate.” According to her, Kawano said to Simpson, “You’re hugging a fucking crackhead”, which elicited a laugh from Fedrick. Simpson then told Cargioli that Kawano was her boyfriend and “I think he’s kind of mad.” Cargioli told Fedrick to apologize to Kawano. Fedrick later told Cargioli that he had apologized. Cargioli agreed that neither Simpson nor Fedrick thought the hug was a big deal.

[10] It was the Crown’s theory that Kawano took such offence to Fedrick hugging Simpson that he enlisted his friend, Grant, in a plan to kill Fedrick and, early the following morning, Kawano shot Fedrick in retaliation for the inappropriate hug.

B. THE SHOOTING

[11] According to surveillance cameras, Kawano and Grant went together to George Street just after 7 p.m. At Seaton House, they sat near Fedrick but did not engage him. There was no apparent argument or confrontation between them. Simpson was also in the vicinity. Surveillance captured her leaving the area at 7:46 p.m.

[12] A photo was taken at 8:01 p.m. of the appellants together on Pembroke Street, one block east of George Street. After that, cell tower information showed that Grant remained in and around the downtown core while Kawano went to Scarborough.

[13] Fedrick was killed in the early morning hours of July 6, 2014 by a single shot fired by a person at a location on George Street, south of Seaton House men’s residence. It was the Crown’s theory that Kawano was the person recorded by various CCTV cameras around that time wearing a scarf wrapped around his head, which led to that individual being called “Scarfman” during the trial. It also was the Crown’s position that Kawano, the Scarfman, shot Fedrick.

CCTV and cell phone evidence leading up to the shooting

[14] CCTV cameras did not capture the shooting of Fedrick. However, they recorded the movements of: Scarfman; a person wearing a bucket hat whom the Crown contended was Grant and whom Grant’s counsel referred to as Grant in her closing submissions; the victim, Fedrick; and others, both before and after the shooting.

[15] ... Cameras showed Grant leaving the apartment alone at 12:56 a.m. on July 6, 2014. Cell tower records show that Grant’s phone moved from the cell tower at 111 Chestnut (near 150 Elizabeth Street) to the cell tower at 145 Mutual Street near Seaton House at 1:33 a.m. Cell towers similarly traced the return of Kawano’s cellphone to the same Mutual Street cell tower near Seaton House.

[16] CCTV footage and cellphone records showed the following:

• 1:34:44 a.m.: Grant, wearing the bucket hat, jeans and a shirt, ran along a laneway from George Street to Jarvis Street; the laneway was just south of where the shooting would occur;
• 1:35:24: Grant came back along the laneway toward George Street with Scarfman, who had a scarf around his head, a dark hoodie, and lighter pants;
• 1:36:23: Scarfman walked north on George Street towards what was known as the “Centre Island” at the entrance to Seaton House and then walked back south;
• 1:37:24: Grant walked north on George Street. As he passed Centre Island, he looked towards a group of people that included Fedrick. He then walked south on George Street, where he ran into Fedrick. The two walked together for a few seconds, then separated. Grant continued south, while Fedrick crossed George Street, where a man with a white towel joined him and they continued south on George Street. At this point Grant was not in view;
• 1:40:07 and 1:42:16: There were calls from Grant’s Samsung cellphone to Kawano’s Blackberry cellphone.
• 1:40:07: Both cellphones pinged on the Mutual Street cell tower near Seaton House;
• 1:46:27 - 1:48:30: Scarfman walked north on George Street past the Centre Island at Seaton House and then walked back in a southerly direction;
• 1:50: The shooting occurred near 305 George Street, a few doors south of Seaton House.

Eyewitness evidence at the time of the shooting

[17] Seven persons testified who were either with or in the immediate vicinity of Fedrick at the time he was shot. Only one of them, David Kamkin, saw the actual shooting. I shall review their evidence in detail when dealing with the ground of appeal concerning the charge on eyewitness identification evidence.

CCTV camera evidence following the shooting

[21] At approximately 2:02 a.m., less than 15 minutes after the shooting, CCTV showed Grant and Kawano at 150 Elizabeth Street, the building in which Grant’s friend, Crocker, had an apartment. CCTV cameras showed that Kawano did not have a scarf on his head. Grant and Kawano stayed the night at Crocker’s apartment.

III. ISSUES

(iii)  Both appellants argue that the trial judge erred in instructing the jury on how to assess the exculpatory evidence of an eye-witness, Kamkin;

[26]  ... However, I conclude that the trial judge’s instructions on Kamkin’s exculpatory identification were tainted by legal error. ...

SECOND ISSUE: DID THE TRIAL JUDGE ERR IN HER INSTRUCTIONS REGARDING THE IDENTIFICATION EVIDENCE GIVEN BY KAMKIN?

B. EYEWITNESS EVIDENCE

[55] Seven persons testified who were either with Fedrick at the time he was shot or in the immediate vicinity. To assist in understanding their evidence, mention should be made of the photograph entered as an exhibit at trial that showed the appellants standing side-by-side. Both appellants are Black, with Kawano’s skin colour lighter than that of Grant.5

[57]  None of those six witnesses saw the actual shooting or the shooter.

[58]  The seventh witness, David Kamkin, did see the shooting. The trial judge’s treatment of Kamkin’s evidence in the charge is the focus of this ground of appeal by both appellants.

C. DAVID KAMKIN’S EVIDENCE

[60] Kamkin was not intoxicated or under the influence of drugs at the time of the shooting, whereas some other witnesses were.

[61] Kamkin testified that he was standing on the east side of George Street, south of Fedrick, who was standing on his right. He noticed a man pacing back and forth on the west side of the street. The man was slim, tall, approximately 5’8” - 5’9” in height, and looked young; was wearing a dark tracksuit, perhaps charcoal grey or a dark grey, and his pants were darker than his top; he wore a long-sleeve tank top with a hood on it, or a hoodie, and he had his hand in his hoodie pocket. The hood was pretty well up in front and it was hard or almost impossible to see his face. He could not see the person’s face from across the street. But, the person’s race was black, “Afro background,” a person of colour; he had a dark complexion.

[62] The man walked across the street towards a group of people turning sharply towards Fedrick. Kamkin then heard a bang, like a powerful firecracker, saw smoke, smelled gunpowder and saw a blue light from the area of the front pockets of the shooter’s hoodie, but he did not see a gun.

a. Skin colour: Kamkin described the shooter as a Black man with a dark complexion. By contrast, Kamkin described himself as having a fair complexion, and he described Kawano as “a lot fairer” than himself. At the preliminary inquiry, when asked whether he recognized either co- accused before the court, Kamkin testified that he did not recognize either Kawano or Grant either from the night of the occurrence or from George Street.

b. Clothing: Kamkin testified that the shooter wore a charcoal grey tracksuit with darker pants. He was clear that the shooter’s pants were darker than his top. The man whom the Crown alleged was Kawano, namely Scarfman, wore a dark zip-up hoodie with significantly lighter pants.

Kamkin testified that the shooter had the hood of his sweatshirt drawn around his face. He did not report seeing glasses on the man’s face or any kind of scarf around the man’s head. The man whom the Crown alleged was Kawano wore a large scarf or garment conspicuously wrapped around his head, covering his face, and Kawano wore glasses. Kamkin testified that the shooter did not take his hands out of the sweatshirt’s pocket and he saw the blue flash emanate from the pocket. No bullet holes or residue were found on the sweatshirt seized from Kawano’s condominium.

c. Direction of approach: Kamkin testified that the shooter was lurking south of the shooting scene for a number of minutes before the shot was fired. The shooter approached from the south, crossed the street toward the deceased in a north-easterly direction, and shot the deceased. In contrast, the man whom the Crown alleged was Kawano was seen on video walking from north to south on George Street just before the shooting.

d. Escape: Kamkin testified that after the shooting, the shooter and the other man jogged together to the gate. A third person opened the gate for them, and all three jogged off together. He found it remarkable that they were “jogging away. Not really running.” The two men alleged to be Kawano and Grant are seen on video running in a full sprint down the laneway, and there is no third person with them. Robert Robinson did not see anyone else running with the man in the scarf, whom the Crown alleged was Kawano.

D. THE PRE-CHARGE CONFERENCE, CHARGE, AND OBJECTIONS TO THE CHARGE

[69] The trial judge initially queried the need for an instruction on eyewitness identification evidence. Kawano thought an instruction was necessary, and counsel suggested changes to the standard instruction.

[71] By contrast, Kamkin’s evidence played a central role in Kawano’s closing to the jury. Kamkin was the only witness who saw a person shoot Fedrick. According to Kawano’s counsel, Kamkin’s description of the shooting demonstrated beyond any doubt that the shooter could not have been Kawano: ...

[72] Kawano’s counsel stressed several aspects of Kamkin’s evidence: (i) Kamkin testified that the shooter moved northward toward Fedrick, whereas security footage shortly before the shooting showed Scarfman – the person whom the Crown contended was the shooter – walking around the Centre Island of Seaton House, which was north of the shooting site; (ii) Kamkin testified the shooter’s pants were darker than his top, contrary to the theory advanced by the Crown of a shooter whose pants were lighter than his top;7 and (iii) Kamkin’s description of the shooter as a dark complexioned Black man was at variance with Kawano’s actual appearance. As Kawano’s counsel put it in his closing:

If it's a rational conclusion that David Kamkin is telling you the truth, and if it's a rational conclusion that he got it right, then that's the end of it. Lights out, go home quickly, and that no cell phone evidence, no tower evidence, no anything can do anything about that.

[73] The trial judge commenced her charge to the jury on November 1, 2017. The following day she instructed the jury on eyewitness identification evidence, stating in part:8

There were no video cameras, however, at the scene of the shooting, only witnesses. They were Mr. Robinson (Stutter), Mr. Kamkin, Trevor Clark (who’s Boxer), Mr. Sule McClymont (Snake), and Ms. Brown-Love and Mr. McDermott (Schoola). You must be cautious about relying on eye-witness testimony to find Alton Grant and Shaqwan Kawano guilty of the offence. In the past, there have been miscarriages of justice because eye-witnesses have made honest mistakes in describing and identifying persons whom they saw committing a crime. [Emphasis added.]

[74] The trial judge then enumerated various factors the jury could take into account when assessing the reliability of the eyewitness evidence. The trial judge concluded this part of her charge by stating:

Crown counsel must prove beyond a reasonable doubt that it was Alton Grant and Shaqwan Kawano who committed the offence charged. It is not necessary that a witness be free from doubt about the correctness or certainty of his or her description about what they described. What is required, however, before you find Alton Grant and Shaqwan Kawano guilty of any offence is that you be satisfied beyond a reasonable doubt that on the whole of the evidence that it was Alton Grant and Shaqwan Kawano who committed the offence.

[75] Later in the charge, the trial judge summarized Kawano’s counsel’s position:

[Kawano’s counsel] Mr. Derstine has submitted to you that the Crown’s case ignores David Kamkin’s evidence that describes the shooting. Mr. Kamkin describes the shooting and actually saw it. He described the shooters clothes as a tracksuit, fleecy, a dark grey, long-sleeve hoodie with his hood drawn and it was hard to see the person’s face from across the street. He also described the two-piece outfit as complimentary, but the pants were dark. The man was slim, tall, and young, mid-to-late 20s. He did not see the glasses on the man – he did not see glasses on this man. The man was south of them and he was going to pass him (Rala). Rala was north and the man turned sharply towards Rala. He heard a bang. Mr. Kamkin also testified that he didn’t see a gun. That the man had a tank top or vest with a hood, with huge pockets from which he saw a blue like – a blue light like a spark plug come from. Mr. Kamkin also testified that there was another man there standing north of Rala. Mr. Derstine submits that based on the description by Mr. Kamkin of the shooter, you cannot be satisfied beyond a reasonable doubt that Mr. Kawano caused the death of Rala Fedrick. The other evidence the Crown has about the murder does not matter.

Your Honour gave a caution to the jury, which is entirely appropriate, about the question about identification evidence and using identification evidence and what have you, but if the evidence of identification exculpates the defence, then it is not subject to the similar charge.

…

[T]he warning that was given about the frailties of identification evidence ought not to be given in terms of the, in terms of the statements which can materially assist the defence … [T]here is no need for the same caution if it is defence exculpatory evidence because there is no risk of a wrongful conviction … [T]he first thing it would be my submission Your Honour should say to the jury is that to the extent that eyewitness identification is exculpatory is not subject to the same caution that you would have for anything that might benefit the Crown. [Emphasis added.]

[B]ecause it is defence exculpatory evidence … I would ask for an instruction … that if they find that the shooter described by Mr. Kamkin bears characteristics which Mr. Kawano cannot bear, then they would have to conclude from that there is no identification of the shooter.

…

[I]f … they accept Mr. Kamkin’s direct identification of that, and for the sake, for example, very dark track pants, dark complexion, and the absence of a scarf or glasses among other things … if they accept those portions of the evidence, then identification is not only not made out, but identification has been disproven pursuant to Chartier, that it is not that person. [Emphasis added]

[80] On its part, the Crown submitted there was no need for a further instruction because, as observed in Wristen at paras. 44 and 45, it was not misdirection for a trial judge to direct a jury to approach certain kinds of defence evidence with care - a principle that would apply equally to exculpatory evidence - so long as it was clear that exculpatory evidence need only raise a reasonable doubt and the burden of proof remained on the Crown at all times.

[81] After considering these submissions, the trial judge declined to further charge the jury as requested by Kawano.

E. THE GOVERNING PRINCIPLES

[83] Jury instructions regarding the assessment of eyewitness identification evidence traditionally involve several components: a direction that the jury approach eyewitness testimony with caution or special care to find anyone guilty of a criminal offence, as there have been miscarriages of justice in the past where innocent people have been wrongly convicted because eyewitnesses have made honest mistakes in identifying the person whom they saw committing a crime; a reminder that even an honest witness can be mistaken; the lack of connection between the confidence of a witness in the correctness of their identification and the accuracy of the identification; and the enumeration of a variety of factors the jury may consider in assessing eyewitness identification testimony: see, for example, Final 32, Watt’s Manual of Criminal Jury Instructions.

[84] As this court has pointed out, the need for special care concerning eyewitness identification evidence arises because of the danger of a wrongful conviction: Wristen, at para. 46; R. v. Vassel, 2018 ONCA 721, 365 C.C.C. (3d) 45, at para. 187. That danger does not exist where the eyewitness evidence tends to exculpate the accused: Wristen, at para. 46; Vassel, at para. 187. Consequently, where the eyewitness evidence tends to exculpate the accused, the traditional instruction regarding eyewitness identification evidence should be avoided as it could leave the jury with an erroneous impression about the quality of evidence that could leave them with a reasonable doubt: Wristen, at para. 46; Vassel, at para. 188.

[85] The decisions of this court in Wristen, Vassel, and R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 22, provide guidance on how a trial judge should instruct a jury on eyewitness identification evidence that tends to exculpate an accused:

• The traditional instruction regarding eyewitness identification evidence and the risk of a miscarriage of justice or wrongful conviction should not be given;
• ... Accordingly, a trial judge may instruct a jury to approach certain kinds of defence evidence, including eyewitness identification evidence, with care or caution and explain why caution is needed due to the frailties of the evidence;
• While the trial judge should make it plain that the jury need not accept the defence or other exculpatory evidence, the judge must instruct the jury that it is sufficient for acquittal if that evidence leaves them with a reasonable doubt;
• A trial judge must not direct the jury that it is dangerous to act on defence identification evidence alone. The instruction must not amount to the functional equivalent of a Vetrovec caution;
• As well, the instruction must not expressly or by necessary implication undermine the defence position or shift the onus of proof;
• Accordingly, where the trial judge merely instructs the jury to be especially cautious or extremely careful in considering defence evidence and where that instruction is accompanied by an instruction that accords with R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, no error of law occurs.

See also: Matthew Gourlay et al., Modern Criminal Evidence (Toronto: Emond, 2022), at p. 621-622.

[86] As for the principle emanating from the Chartier decision that a jury should be told there was no identification by a witness because of significant dissimilarities between the witness’s description of the person observed and the accused, this court stated in R. v. Dimitrov (2003), 2003 CanLII 50104 (ON CA), 68 O.R. (3d) 641 (C.A.), at para. 18, that the principle only applies to cases in which there is a clear dissimilarity in the witness’s identification coupled with a lack of supporting evidence implicating the accused: see also, R. v. Browne, 2021 ONCA 836, at para. 48.

[87] The legal treatises also recognize the limited application of the Chartier principle. David M. Paciocco, Palma Paciocco and Lee Stuesser, in The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), state, at p. 680: “If there is a notable dissimilarity between the initial description furnished by the witness and the suspect who is identified, and if there is no other evidential support for that identification, then jurors should be cautioned that the purported identification will have no probative value.” Gourlay et al., in Modern Criminal Evidence, write, at p. 621:

Description evidence tendered through an eyewitness that, at best, amounts to mere resemblance, often has value. This evidence can assist the trier of fact “along the road toward a determination of identity.” Relevance will therefore depend on the existence of other inculpatory evidence of identification. This position represents a clarification, if not a modification, of the Supreme Court's statement in Chartier that where an identifying witness observes a feature that is dissimilar to that of the accused, there can be no identification ... As observed by Harradence J in Doliente, generally Chartier has been “held to its facts” and is not always instructive. In most cases where there are alleged discrepancies between a description provided by a witness and the actual appearance of an accused, a judge may highlight them accordingly, but the significance of these discrepancies should be left to the trier of fact to resolve. [Emphasis in original.]

F.           ANALYSIS

[88] I accept Kawano’s submission that the trial judge misdirected the jury on the exculpatory eyewitness evidence provided by Kamkin.

[91] Notwithstanding the exculpatory tendency of several aspects of Kamkin’s evidence, the trial judge included his evidence in her traditional charge on eyewitness identification evidence. That was an error for several reasons.

[92] First, the trial judge’s instruction on eyewitness identification evidence did not acknowledge that some of Kamkin’s evidence tended to be exculpatory in nature. That was a material omission, given the otherwise circumstantial nature of the evidence against Kawano and the centrality of Kamkin’s evidence to Kawano’s defence. [Emphasis by PJM]

[93]  Second, the charge did not offer the jury any assistance about how to distinguish exculpatory from inculpatory evidence and assess the exculpatory evidence. Instead, it treated Kamkin’s evidence as a single whole. In R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, this court stated, at para. 34, regarding the content of a Vetrovec charge, that where the inculpatory portions of a witness’s testimony are easily demarcated from the exculpatory portions, the best course is to specifically refer the jury to the exculpatory portions. ... Those comments apply with equal force to instructions regarding eyewitness identification evidence. Accordingly, where some of the eyewitness evidence is exculpatory the issue on appeal is whether the charge as a whole, in the context of the particular case, clearly informed the jury that they must determine whether the exculpatory evidence alone, or in combination with other evidence, left them with a reasonable doubt about the accused’s guilt. [PJM Emphasis]

[94] Third, given the exculpatory tendency of aspects of Kamkin’s evidence, by including his evidence in the traditional instruction for eyewitness identification evidence the trial judge ignored the directions of this court in Wristen, at para. 46 – later repeated, albeit after the trial, in Vassel, at para. 192 – that the traditional instruction should not be used for exculpatory evidence, which does not give rise to the danger of a wrongful conviction.

[96] ... Here, while the section of the charge instructing on eyewitness identification evidence concluded with a reminder that the burden of proof remained on the Crown, that was not the functional equivalent of a W.(D.) instruction nor was it the equivalent of a reminder that while the jury did not need to accept the defence evidence, it was sufficient if the defence evidence left them with a reasonable doubt: Written, at para. 46.

[99] Each case will turn on its specific circumstances. In the present case, I do not regard the trial judge’s summary of the defence’s position on Kamkin’s evidence towards the end of the charge as overcoming the earlier errors in the charge on eyewitness identification evidence. Here, Kamkin was the only witness who saw the shooting and the shooter. His evidence was critical. Indeed, after they retired, the jury requested that Kamkin’s evidence be replayed for them. His evidence about the appearance and movement of the shooter arguably was largely exculpatory in nature. In those circumstances, a short reference to the defence’s position on Kamkin’s evidence at the end of the charge did not offset the earlier erroneous instruction on exculpatory eyewitness identification evidence.

[101] In regard to the erroneous instruction on eyewitness identification evidence, in my view the error is not one that can attract the application of the curative proviso: Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii). The error was a serious one, related to key evidence, and the Crown’s case was not overwhelming.

Disposition

 [119] ... I conclude that the trial judge erred in her instruction to the jury regarding eyewitness identification evidence and the curative proviso cannot apply in the circumstances. As that error affects the verdicts against both appellants, I would set aside those verdicts and order a new trial.